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Case 1:19-cv-02020-UNA Document 1 Filed 10/24/19 Page 1 of 16 PagelD #: 1 IN THE
Case 1:19-cv-02020-UNA Document 1 Filed 10/24/19 Page 1 of 16 PagelD #: 1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
R3 LLC
Plaintiff,
v.
1
Civil Action No.
0(1) LABS OPERATING
CORPORATION AND 0(1) LABS, LLC
)
JURY TRIAL DEMANDED
Defendants.
COMPLAINT
Plaintiff R3 LLC, by their attorneys, Drinker Biddle & Reath, LLP, for their complaint
against Defendants 0(1) Labs Operating Corporation and 0(1) Labs, LLC, allege as follows:
NATURE OF ACTION
1. Plaintiff R3 LLC ("Plaintiffor "R3") is a leading enterprise blockchain software
firm that first introduced, used, developed and marketed a blockchain software and platform in
2016 under its federally registered and distinctive CORDA trademark ("CORDA Mark"). R3 has
made use of the CORDA Mark since that time in marketing, distributing and, where applicable,
selling its open source and enterprise blockchain software decentralized platform (CORDA
Platform and Software'), which is now being used across multiple industries in the United States
and globally.
2. Despite R3's use and rights in its CORDA Mark, Defendants recently launched a
decentralized blockchain protocol under the confusingly similar CODA trademark (CODA
Mark"). R3 advised Defendants of their infringing use of the CODA Mark shortly after learning
Case 1:19-cv-02020-UNA Document 1 Filed 10/24/19 Page 2 of 16 PagelD #: 2 of Defendantsplanned
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of Defendantsplanned use of its CODA Mark. Defendants, however, proceeded with the launch
of its blockchain protocol under the CODA Mark (CODA Protocor) in a willful manner that is
likely to cause consumer confusion and deceive the public regarding the source, sponsorship,
and/or affiliation of the CODA Protocol. Defendants' use, promotion, marketing, and distribution
of their CODA Protocol is therefore unlawful and is causing irreparable harm to R3.
3. Accordingly, R3 brings this civil action for: (i) trademark infringement arising
under Section 32(1) of the Lanham Act of 1946, as amended, 15 U.S.C. § 1051 et seq., including
willful infringement; (ii) use of false designations of origin in commerce and false advertisement,
arising under Section 43(a) of the Lanham Act of 1946, as amended, 15 U.S.C. § 1125(a); (iii)
unfair competition, arising under Section 43(a) of the Lanham Act, as amended, 15 U.S.C. §
1125(a); (iv) trademark infringement under the Delaware Trademark Act, 6 Del. C. § 3312; (v) the
likelihood of injury to business reputation or of dilution of the distinctive quality of a mark or trade
name valid at common law under the Delaware Trademark Act, 6 Del. C. § 3313; (vi) statutory
unfair competition under the Delaware Uniform Deceptive Trade Practices Act, 6 Del. C. § 2531
et seq.; (vii) common law unfair competition under the common law of the State of Delaware; and
(viii) unjust enrichment under the common law of the State of Delaware.
PARTIES
4. R3 was formed in Februaiy 2016 and is a Delaware limited liability company. R3
has an office and principal place of business at 11 West 42nd Street, 8th Floor, New York, New
York. R3 is a highly successful enterprise blockchain software technology company that has
created and leads the largest blockchain ecosystem in the world comprised of hundreds of tech
firms building applications on its CORDA Platform and Software.
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5. Upon information and belief, Defendant 0(1) Labs Operating Corporation (0(1)
Corporatioe) is a corporation organized and existing under the laws of the State of Delaware with
a principal place of business at 111 New Montgomery St., Suite 400, San Francisco, California.
Upon information and belief, 0(1) Corporation is promoting, using, distributing and marketing,
and intends to continue promoting, using, distributing and marketing, the CODA Protocol.
6. Upon information and belief, Defendant 0(1) Labs, LLC (ow LLC") is a
Delaware limited liability company organized and existing under the laws of the State of Delaware
with a principal place of business at office at 111 New Montgomery St., Suite 400, San Francisco,
California. Upon information and belief, 0(1) LLC is promoting, using, distributing and
marketing, and intends to continue promoting, using, distributing and marketing, the CODA
Protocol.
JURISDICTION AND VENUE
7. This Court has original jurisdiction over the claims arising under the Lanham Act
pursuant to 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331 and 1338. This Court has supplemental
jurisdiction over the claims arising under the laws of the State of Delaware pursuant to 28 U.S.C.
§ 1367.
8. The Court has personal jurisdiction over each Defendant because, upon information
and belief, each Defendant has sought protection and benefit from the laws of the State of
Delaware; each Defendant has minimum contacts within the State of Delaware and in the District
of Delaware; each Defendant has purposefully availed itself of the privileges of conducting
business in the State of Delaware and in the District of Delaware; each Defendant regularly
conducts business within the State of Delaware and within the District of Delaware, and Plaintiff s
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causes of action arise directly from each Defendantsbusiness contacts and other activities in the
State of Delaware and in the District of Delaware.
9. More specifically and upon information and belief, each Defendant promotes,
distributes and/or advertises (including the provision of an interactive web page which induces
programmers to use and investors to invest in) its products and services, including the CODA
Protocol and blockchain platform in the State of Delaware, and the District of Delaware. Upon
information and belief, each Defendant has committed infringement in the State of Delaware and
in the District of Delaware.
10. Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b) and (c).
FACTS
R3 and its CORDA® Mark
11. R3 is a leading enterprise blockchain software firm. At least as early as April 2016,
R3 formally introduced its blockchain platform under the CORDA brand. The blockchain market
and software platforms in that market are a relatively new phenomenon with a small but growing
number of software firms and products on the market. As such, products become known to the
customers by their brands. Additionally, the concept of an ecosystem involves programmers
around the country and, indeed, the world, programming on a common platform to develop new
products to offer to customers. A platform brand is important to prevent confusion in the market.
R3 understood this when chose the mark CORDA as a brand to distinguish its platform. In the
ensuing years, R3 has spent time and effort growing the CORDA brand in the blockchain market.
The CORDA Mark quickly came to signify the quality and reputation of R3 in the blockchain
space.
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12. R3 is the owner of Untied States Trademark Registration 5282121 issued by the
United States Patent and Trademark Office ("USPTO") on September 5, 2017, for the CORDA
Mark covering "Computer programs for use in distributed ledger platform technology; Computer
for
distributed
programs
facilitating electronic
ledger platform transactions via
telecommunications systems, data communication systems or global networks; Distributed ledger
platform software of use in processing financial transactions, electronic funds transfer and
currency conversion; Distributed ledger platform technology for use in e-comrnerce or on-line
marketplaces to allow users to perform electronic transactions via a global computer or mobile
device network; Computer programs for use in identity management." A copy of the Certificate
of Registration for this mark is attached at Exhibit 1.
13. Additionally, R3 has applied for United States federal trademark registration for its
CORDA logo, filed on August 29, 2019 as Application No. 88/597658 pending for "Computer
programs for use in distributed ledger platform technology, computer programs for facilitating
electronic distributed ledger platform transactions via telecommunications systems, data
communication systems or global networks, distributed ledger platform software for use in
processing financial transactions and commercial transactions, electronic funds transfer and
currency conversion, distributed ledger computer software platform for use in e-commerce or on-
line marketplaces to allow users to perform electronic transactions via a global computer or mobile
device network, computer programs for use in identity management", in International Class 9;
"Peer-to-peer network computer services, namely, providing multi-user access to a computer
network of applications built on a Blockchain software platform", in International Class 38; and
"Software as a service, featuring software for providing an electronic platform that facilitates
development and usage of Blockchain software applications; Software as a service, featuring an
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online platform for providing software that facilitates development of Blockchain software
applications; Computer services, namely, providing an on-line community for users to develop
and share applications built on a Blockchain software platform; providing a web hosting platform
for users to develop and share Blockchain applications; Application service provider featuring
application programming interface (API) software in the fields of Blockchain and distributed
ledger platform technology; Application service provider featuring Application Programming
Interface (API) software to facilitate development and sharing of Blockchain applications;
Providing computer software systems for leveraging distributed ledger technology (Blockchain
technology) as a business solution", in International Class 42. The CORDA logo is depicted
below.
c•rda
14. R3 also has applied for United States federal registration of the trademark
POWERED BY CORDA, filed on November 28, 2017 as Application No. 87/699391, for
"Computer programs for use in distributed ledger platform technology; computer programs for
facilitating electronic distributed ledger platform transactions via telecommunications systems,
data communication systems or global networks; distributed ledger platform software for use in
processing financial transactions, electronic funds transfer and currency conversion; distributed
ledger platform technology, namely, computer software for use in e-commerce or on-line
marketplaces to allow users to perform electronic transactions via a global computer or mobile
device network; computer programs for use in identity management" in International Class 9.
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15. R3 owns numerous related foreign registrations of the CORDA Mark, including in
Australia (Registration No. 1302565, issued November 17, 2016), the European Union
(Registration No. 1302565, issued December 20, 2016), Japan (Registration No. 1302565, issued
May 12, 2017), Singapore (Registration No. 1302565, issued September 7, 2017) and Brazil
(Registration No. 914258540, issued April 24, 2019); as well as POWERED BY CORDA and the
CORDA logo. These registrations and applications are part of a CORDA brand owned by R3.
16. Since at least 2016, R3 has extensively and continuously used the CORDA Mark
in connection with its CORDA Platform and Software. Subsequent to that, R3 began using the
POWERED BY CORDA mark and the CORDA logo.
17. R3 has also spent a substantial amount of time and money growing and promoting
the CORDA brand in the blockchain field and, in particular, as a software platform.
18. As a result of R3' s extensive use and promotion of the CORDA Mark, the CORDA
Mark and CORDA Platform and Software are extremely well known in the blockchain and
software industries and R3 has built up and now owns extremely valuable goodwill that is
symbolized by the CORDA Mark. The purchasing public has come to associate CORDA with R3.
Defendant's Activities Resulting in, Inter Alia, Trademark Infringement
and Unfair Competition
19. Upon information and belief, Defendants promote themselves as a blockchain
software development firm. According to Defendants, their first project was development of their
"Coda Protocol," which purportedly "addresses one of the fundamental challenges in
cryptocurrency by creating the first succinct blockchain that enables decentralization at scale."
See https://www.linkedin.com/company/ollabs/about/. Upon information and belief, Defendants
are currently marketing and distributing its CODA Protocol, including encouraging programmers
to "interact with the testnet and contribute to Coda's development." for at least beta testing
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purposes. See Exhibit 2 excerpts from https://codaprotocol.com/testnet.html and
https://codaprotocol.com/blog/coda2019.html.
Upon information and belief, Defendants
encourage programmers to create a "Coda Network" as part of using DefendantsCODA software
and CODA Protocol.
See https://codaprotocol.com/docs/faq/#what-can-i-do-on-the-coda-
network.
20. Upon information and belief, the CODA Protocol is highly related to the CORDA
Platform and Software.
21. Accordingly and upon information and belief, R3 and Defendants compete in the
same marketplace, have at least a significant amount of the same classes of consumers/users in
common in the blockchain market and have the same channels of trade in common.
22. Upon information and belief, Defendants had actual notice of R3's rights in the
CORDA Mark at the time they initiated use of the CODA Mark, and Defendants at least had
constructive notice of R3' s rights in the CORDA Mark. This notice, at least, suggests Defendants
had a bad faith intent to profit from the use of a confusingly similar mark to CORDA in order to
trade off of the significant goodwill R3 has developed in its CORDA Mark over the past three
years.
23. It is likely that consumers
will be confused by Defendants' use of the CODA Mark
particularly where the marks are nearly identical, the pronunciation of the respective marks is close
to identical, and customers calling for the goods under the CODA mark are likely to confuse
CODA and CORDA.
24. Defendants' use of the CODA Mark is confusingly similar to R3' s CORDA Mark.
Defendants' use of the CODA Mark is similar to and conveys the same commercial impression as
that of the CORDA Mark, especially because the CODA Mark is used by Defendants in advertising
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and promoting their blockchain protocol, which is highly related to R3's CORDA Platform and
Software.
25. The likelihood of confusion between CODA and CORDA will continue until
Defendants cease all use of the CODA Mark and ceases all use, marketing and distribution of the
CODA Protocol and encouraging creation of a CODA Network. Defendantsuse and planned use
of the CODA Protocol constitutes willful and intentional infringement and unfair competition, and
is harmful to R3.
26. Defendants' use of the CODA Mark in connection with their blockchain protocol
is likely to cause confusion as to the source and origin of the CODA Protocol and is likely to cause
confusion, or to cause mistake, or to deceive the public and the trade as to the source or sponsorship
of the CODA Protocol and to falsely suggest a connection with R3, and mislead the public into
believing that the CODA Protocol emanates from, is approved or sponsored by, or is in some way
associated or connected with R3 and the CORDA Platform and Software.
27. Defendants' use of the CODA Mark in its advertising in connection with highly
related goods falsely conveys that R3 is affiliated with Defendants or otherwise misrepresents the
nature, characteristics, and qualities of Defendants' goods and commercial activities. The
marketing and use by Defendant of the CODA Mark, upon information and belief, actually and
materially deceived or
has the capacity to materially deceive a substantial segment of the audience.
28. Current and prospective customers looking for R3 and the CORDA Platform and
Software and encountering the CODA Mark are likely to be confused or deceived as to the source
of the goods or mistaken belief that the CODA Protocol or CODA Network is somehow built on
or affiliated with or emanated from the CORDA Platform and Software, and sales and undue
benefits could thus be diverted to Defendants.
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29. Upon information and belief, Defendantsadoption and use of the infringing
CODA Mark represents a deliberate attempt to trade unlawfully upon the goodwill associated with
the CORDA Mark.
30. Defendant's activities as described herein have and will cause R3 irreparable harm
and significant injury.
COUNT I -- INFRINGEMENT OF REGISTERED TRADEMARK
31. R3 repeats and realleges each and every allegation set forth in paragraphs 1 through
30 above as if fully set forth herein.
32. Defendants, without authorization from R3 and with knowledge that CORDA and
CODA are likely to be confused, have used and continue to use designations, including the CODA
Mark, that are confusingly similar to the CORDA Mark.
33. The foregoing acts of Defendants are intended to cause and are likely to cause
confusion, mistake, and deception among consumers, the public, and the trade as to whether the
CODA Protocol originates from, or are affiliated with, sponsored by, or endorsed by R3.
34. Defendants have acted with knowledge of R3's ownership of the CORDA Mark
and to unfairly benefit from the goodwill symbolized thereby.
35. Defendants' activities as described above constitute infringement of the CORDA
Mark in violation of Section 32(1) of the Lanham Act of 1946, as amended (15 U.S.C. § 1114(1)).
36. Upon information and belief, Defendants have made and will continue to make
substantial profits and gains to which they are not in law or equity entitled.
37. Upon information and belief, Defendants intend to continue their willful infringing
acts, unless restrained by this Court.
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38. Defendantsacts have damaged and will continue to damage R3, and R3 has no
adequate remedy at law.
COUNT II -- FALSE DESIGNATION OF ORIGIN AND FALSE ADVERTISING
39. R3 repeats and realleges each of the allegations set forth in paragraphs 1 through
38 above as if fully set forth herein.
40. Defendants' promotion, advertising, and/or distribution of the CODA Protocol is
likely to confilse, mislead, or deceive consumers, the public, and the trade as to the origin, source,
sponsorship, or affiliation of the CODA Protocol, and is intended, and is likely to cause, such
parties to believe in error that the CODA Protocol has been authorized, sponsored, approved,
endorsed, or licensed by R3 or that Defendants are in some way affiliated with R3.
41. Defendants' activities as described above constitute the use of false designations of
origin in commerce, and false and misleading descriptions and representations of fact, all in
violation of Section 43(a) of the Lanham Act of 1946, as amended (15 U.S.C. § 1125(a)).
42. Upon information and belief, Defendants have made and will continue to make
substantial profits and gains to which they are not in law or equity entitled.
43. Upon information and belief, Defendants intend to continue their infringing acts,
unless restrained by this Court.
44. Defendants' acts have damaged and will continue to damage R3, and R3 has no
adequate remedy at law.
COUNT III -- UNFAIR COMPETITION
45. R3 repeats and realleges each of the allegations set forth in paragraphs 1 through
44 above as if fully set forth herein.
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46. Defendantsactivities as described above constitute unfair competition in violation
of Section 43(a) of the Lanham Act of 1946, as amended (15 U.S.C. § 1125(a)).
47. Upon information and belief, Defendants have made and will continue to make
substantial profits and gains to which they are not in law or equity entitled.
48. Upon information and belief, Defendants intend to continue its infringing acts,
unless restrained by this Court.
49. Defendants' acts have damaged and will continue to damage R3, and R3 has no
adequate remedy at law.
COUNT IV -- TRADEMARK INFRINGEMENT UNDER THE DELAWARE
TRADEMARK ACT, 6 DEL. C. § 3312
50. R3 repeats and realleges each of the allegations set forth in paragraphs 1 through
49 above as if fully set forth herein.
51. Defendants' activities as described above constitute use, without the consent of R3,
of a colorable imitation of the CORDA Mark in connection with the advertising and distribution
of the highly related CODA Protocol that is likely to cause confusion as to the source or origin of
the CODA Protocol.
52. Defendants' activities as described above constitute infringement of the CORDA
Mark in violation of Title 6, Chapter 33 of the Delaware Code (6 Del. C. § 3312).
53. Upon information and belief, Defendants intend to continue their infringing acts,
unless restrained by this Court.
54. Upon information and belief, Defendants have made and will continue to make
substantial profits and gains to which they are not in law or equity entitled.
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55. Defendantsacts have damaged and will continue to damage R3, and R3 has no
adequate remedy at law.
COUNT V -- TRADEMARK DILUTION AND INJURY TO BUSINESS REPUTATION
UNDER THE DELAWARE TRADEMARK ACT, 6 DEL. C. § 3313
56. R3 repeats and realleges each of the allegations set forth in paragraphs 1 through
55 above as if fully set forth herein.
57. The CORDA Mark is distinctive, and has enjoyed such distinction before the time
Defendants commenced use of the CODA Mark.
58. Defendants' activities as described above constitute injury to Plaintiff s business
reputation and dilution of the distinctive quality of the CORDA Mark, in violation of the Delaware
Trademark Act, 6 Del. C. § 3313.
59. Upon information and belief, Defendants have made and will continue to make
substantial profits, gains and undue benefits to which they are not in law or equity entitled.
60. Upon information and belief, Defendants intend to continue its infringing acts,
unless restrained by this Court.
COUNT VI -- UNFAIR COMPETITION UNDER THE DELAWARE UNIFORM
DECEPTIVE TRADE PRACTICES ACT, 6 DEL. C. § 2531 ET SEQ.
61. R3 repeats and realleges each of the allegations set forth in paragraphs 1 through
60 above as if fully set forth herein.
62. Defendants' activities as described above constitute unfair competition and
deceptive trade practices under the Delaware Uniform Deceptive Trade Practices Act, 6 Del. C.
§ 2531 et seq.
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63. Upon information and belief, Defendants have made and will continue to make
substantial profits and gains to which they are not in law or equity entitled.
64. Upon information and belief, Defendants intend to continue their infringing acts,
unless restrained by this Court.
65. Defendantsacts have damaged and will continue to damage R3, and R3 has no
adequate remedy at law.
COUNT VII -- COMMON LAW UNFAIR COMPETITION
66. R3 repeats and realleges each of the allegations set forth in paragraphs 1 through
65 above as if fully set forth herein.
67. Defendants' activities as described above constitute unfair competition under the
common law of the State of Delaware.
68. Upon information and belief, Defendants have made and will continue to make
substantial profits and gains to which they are not in law or equity entitled.
69. Upon information and belief, Defendants intend to continue their infringing acts,
unless restrained by this Court.
70. Defendants' acts have damaged and will continue to damage R3, and R3 has no
adequate remedy at law.
COUNT VIII -- COMMON LAW UNJUST ENRICHMENT
71. R3 repeats and realleges each of the allegations set forth in paragraphs 1 through
70 above as if fully set forth herein.
72. Benefits have been conferred upon Defendants by Defendants' unauthorized use of
the CODA Mark.
73. Defendants have appreciated, accepted, and retained these benefits.
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74. It is inequitable for Defendants to retain these benefits without the payment of value
to R3.
75. Defendants have been unjustly enriched at the expense of R3.
76. Defendantsactivities as described above constitute unjust enrichment under the
common law of the State of Delaware.
PRAYER FOR RELIEF
WHEREFORE, R3 prays for the following relief:
1. That Defendants, their agents, servants, affiliates, representatives, successors, and
assigns, and all those persons or entities in active concert or participation with any of them who
receive actual notice of the injunctive order, be permanently enjoined from:
(a) Using the CORDA Mark or any other mark, symbol, or device that
is confusingly similar to the CORDA Mark, including the CODA Mark; and
(b) Committing any other act calculated or likely to cause the public to
believe that Defendants are in any manner connected, affiliated, or associated with R3 or
from otherwise competing unfairly with R3.
2. Pursuant to 15 U.S.C. § 1118, that Defendants deliver to R3 for destruction all
material (including, without limitation, all advertisements, promotional materials, and brochures)
within their possession, custody, or control, either directly or indirectly, that bears the CODA Mark
or any other designation, symbol, or device that is confusingly similar to the CORDA Mark.
3. Pursuant to 15 U.S.C. § 1116(a), that Defendants be directed to file with the Court
and serve upon R3, within thirty (30) days after entry of the injunctive order, a report in writing
and under oath setting forth in detail the manner and form by which they have complied with the
provisions set forth in paragraphs 1 and 2 above.
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4. Pursuant to 15 U.S.C. § 1117(a), 6 Del. C. § 3314(e), and the common law, that
Defendants be directed to account to R3 for all gains, profits, and advantages derived from
Defendantswrongful acts.
5. Pursuant to 15 U.S.C. § 1117(a) and 6 Del. C. § 2533(c), that R3 recovers from
Defendants the greater of three times the amount of Defendants' profits or any damages sustained
by R3, together with interest on such amount and the costs of this action.
6. Pursuant to 15 U.S.C. § 1117(a) and 6 Del. C. § 2533(b), that the Court determine
that the case is exceptional and that R3 recovers from Defendants its attorneys' fees and the costs
of this civil action.
7. That R3 be awarded such other and further relief as the Court deems equitable, just,
and proper.
JURY TRIAL DEMAND
R3 respectfully demands a trial by jury on all claims and issues so triable.
Date: October 24, 2019
/s/ Keith A. Walter
Keith A. Walter (#4157)
DRINKER BIDDLE & REATH LLP
222 Delaware Avenue, Suite 1410
Wilmington, DE 19801
(302) 467-4200
Of Counsel:
keith.walter@dbr.com
Robert E. Cannuscio
Attorney for Plaintiff
DRINKER BIDDLE & REATH LLP
1 Logan Square, Suite 2000
Philadelphia, PA 19103
(215) 988-2700
robert.cannuscio@dbr.com
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